Citation Nr: 18147547 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 17-16 953 DATE: November 6, 2018 ORDER New and material evidence having been received, a claim of entitlement to service connection for diabetes is considered reopened. New and material evidence having been received, a claim of entitlement to service connection for headaches is considered reopened. The claim of entitlement to service connection for chronic fatigue syndrome is denied. REMANDED The claim of entitlement to service connection for thoracolumbar strain is remanded. The claim of entitlement to service connection for bronchitis is remanded. The claim of entitlement to service connection for diabetes is remanded. The claim of entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. A February 2003 rating decision denied entitlement to service connection for diabetes; the Veteran did not file a timely notice of disagreement regarding that decision and no new and material evidence was submitted to VA within the applicable time period. 2. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for diabetes has been received since the February 2003 rating decision, and as such, the claim for entitlement to service connection for diabetes is reopened. 3. An August 2010 rating decision denied entitlement to service connection for headaches; the Veteran did not file a timely notice of disagreement regarding that decision and no new and material evidence was submitted to VA within the applicable time period. 4. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for headaches has been received since the August 2010 rating decision, and as such, the claim for entitlement to service connection for headaches is reopened. 5. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of chronic fatigue syndrome; the Veteran’s symptoms of fatigue do not constitute a separately diagnosed disability, but rather a symptom of her service-connected psychiatric disability. CONCLUSIONS OF LAW 1. The February 2003 rating decision is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 2. New and material evidence has been received since the February 2003 denial of service connection for diabetes to reopen the claim of entitlement to service connection for diabetes. 38 U.S.C. §§ 1131, 5103, 5108 (West 2014); 38 C.F.R. §§ 3.156, 3.303 (2018). 3. The August 2010 rating decision is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 4. New and material evidence has been received since the August 2010 denial of service connection for headaches to reopen the claim of entitlement to service connection for headaches. 38 U.S.C. §§ 1131, 5103, 5108 (West 2014); 38 C.F.R. §§ 3.156, 3.303 (2018). 5. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1997 to December 2002 in the United States Marine Corps. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (West 2014). “New” evidence is defined as existing evidence not previously submitted to agency decisionmakers. “Material” evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes. In a February 2003 rating decision, the RO denied service connection for diabetes. The Veteran did not file a notice of disagreement regarding the February 2003 rating decision. Therefore, that decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The Veteran also did not submit any information or evidence within one year of the February 2003 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that when statements are received within one year of the rating decision, the Board’s inquiry is not limited to whether the statements constitute notices of disagreement, but whether they include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). Evidence received since the rating decision in February 2003 includes a documented diagnosis of diabetes, to include treatment for diabetes. The evidence was not of record at the time of the prior denials and is material to the claims. Therefore, such evidence is new and material and the claim for service connection for diabetes is reopened. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches. In an August 2010 rating decision, the RO denied service connection for a headache disability. The Veteran did not file a notice of disagreement regarding the August 2010 rating decision. Therefore, that decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The Veteran also did not submit any information or evidence within one year of the August 2010 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that when statements are received within one year of the rating decision, the Board’s inquiry is not limited to whether the statements constitute notices of disagreement, but whether they include the submission of new and material evidence under 38 C.F.R. § 3.156(b).). Evidence received since the rating decision in August 2010 includes a study showing headaches related to psychiatric diagnoses and a VA examiner in April 2016 noted that migraine symptoms may be worsened by mood disorders. The evidence was not of record at the time of the prior denials and is material to the claims. Therefore, such evidence is new and material and the claim for service connection for a headache disability is reopened. 3. Entitlement to service connection for chronic fatigue syndrome. The Veteran contends that she has chronic fatigue syndrome that is causally related to service or a service-connected disability. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of chronic fatigue syndrome and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran was afforded a VA examination in April 2016. The examiner performed a physical examination and reviewed the Veteran’s claims file and medical history. The examiner noted no pathology to render a diagnosis for the claimed fatigue condition. The examiner acknowledged that the Veteran had a history of major depression, panic disorder, bipolar disorder, and generalized anxiety disorder. These conditions may contribute to fatigue symptoms and must be resolved before being given a diagnosis of chronic fatigue syndrome. Therefore, he found no diagnosis to render a medical opinion. The Veteran’s treatment records are extensive, but do not include a diagnosis of chronic fatigue syndrome. The records do show that the Veteran struggled with overall fatigue, but it was considered a symptom related to poor sleep hygiene and habits, poor dietary habits, stress, mood disorders, and medical side effects, and was not considered a diagnosable disability. While the Veteran believes she has a current diagnosis of chronic fatigue syndrome, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Veteran’s symptoms of fatigue are considered a symptom of her service-connected psychiatric disability and not a separate diagnosable disability. Without evidence of a current disability, service connection may not be granted. The Court has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran does not have a current diagnosis of chronic fatigue syndrome. There also is no evidence of a separate diagnosable disability at any point during the claims period or shortly prior to the claim being filed. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Therefore, the Board finds that entitlement to service connection is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for thoracolumbar strain is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a thoracolumbar strain because no VA examiner has opined whether the Veteran’s thoracolumbar strain is aggravated by her service-connected ankle conditions, hallux valgus conditions, or bilateral pes planus condition. Therefore, the Board finds that a new opinion is necessary to address the issue of aggravation. 2. Entitlement to service connection for bronchitis is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for bronchitis as the evidence of record is conflicting regarding whether the Veteran has a current diagnosis of chronic bronchitis. The VA examiner in April 2016 determined that the Veteran did not have a current diagnosis of chronic bronchitis. January and February 2014 VA treatment records showed, however, mild central bronchial wall thickening suggesting chronic bronchitis or reactive airway disease. The examiner did not address these findings. Therefore, the Board finds that a new examination is necessary to address whether the findings of January and February 2014 constitute a current respiratory disability. 3. Entitlement to service connection for diabetes is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for diabetes because no VA examiner has opined whether the Veteran’s current diabetes is causally related to her gestational diabetes during service. The Veteran and her representative submitted a study showing that a previous diagnosis of gestational diabetes carries a lifetime risk of progression to type II diabetes of up to 60 percent. The Veteran has not been afforded a VA examination since November 2002 at which time the Veteran did not have a diagnosis of diabetes. As the Veteran has a current diagnosis and the record contains medical literature indicating a connection between gestational diabetes and development of diabetes, a new nexus opinion is required. 4. Entitlement to service connection for headaches is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for headaches because no VA examiner has opined whether the Veteran’s headaches are aggravated by her service-connected psychiatric disabilities or her medications used to treat her service-connected disabilities. Therefore, a new VA examination and nexus opinion is necessary. The matters are REMANDED for the following action: 1. Return the claims file to the April 2016 examiner for further comment. If the examiner is not available, provide the claims file to an appropriate VA examiner, preferably an orthopedic examiner if reasonably available, for a nexus opinion. The examiner should review the claims file, specifically the Veteran’s service treatment records, her lay statements and history, and the April 2016 VA examination and opinion. The examiner should then answer the following: a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s diagnosed thoracolumbar strain began in service, was caused by service, or was otherwise related to the Veteran’s active service. b.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s diagnosed thoracolumbar strain was caused or aggravated by the Veteran’s service-connected ankle conditions, hallux valgus conditions, or bilateral pes planus condition. The Veteran’s lay assertions must be considered and discussed when formulating an opinion. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. 2. Return the claims file to the April 2016 examiner for further comment. If the examiner is not available, provide the claims file to an appropriate VA examiner, preferably a respiratory examiner if reasonably available, for a nexus opinion. The examiner should review the claims file, specifically the Veteran’s service treatment records, her lay statements and history, the January and February 2014 findings showing mild central bronchial wall thickening suggesting chronic bronchitis or reactive airway disease, and the April 2016 VA examination and opinion. The examiner should note any diagnosis of bronchitis or other respiratory disability and should specifically address the January and February 2014 findings. If the examiner still determines that no diagnosis is present, then they should provide an explanation and rationale. The examiner should then answer the following: Is it at least as likely as not (50 percent probability or more) that any diagnosed respiratory disability began in service, was caused by service, or was otherwise related to the Veteran’s active service. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. 3. Schedule the Veteran for a VA examination regarding her diabetes. The examiner should review the claims file, specifically the Veteran’s service treatment records, the Veteran’s lay statements, her current treatment records, and the study submitted by the Veteran showing that a previous diagnosis of gestational diabetes carries a lifetime risk of progression to type II diabetes of up to 60 percent. The examiner should then answer the following: Is it at least as likely as not (50 percent probability or more) that the Veteran’s diagnosed diabetes began in service, was caused by service, or is otherwise related to the Veteran’s active service, to include her gestational diabetes diagnosed during active service? A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. 4. Return the claims file to the April 2016 examiner for further comment. If the examiner is not available, provide the claims file to an appropriate VA examiner, preferably a neurological examiner if reasonably available, for a nexus opinion. The examiner should review the claims file, specifically the Veteran’s service treatment records, her lay statements and history, and the April 2016 VA examination and opinion, to include the statement that migraine symptoms may be worsened by mood disorders. The examiner should also address the studies showing a correlation between psychiatric disabilities and headaches, as well as the treatment record showing that Prozac caused headaches. The examiner should then answer the following: a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s diagnosed headaches began in service, were caused by service, or were otherwise related to the Veteran’s active service. b.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s diagnosed headaches were caused or aggravated by the Veteran’s service-connected psychiatric disabilities or the medications required to treat her service-connected disabilities. The Veteran’s lay assertions must be considered and discussed when formulating an opinion. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. (Continued on the next page)   5. After undertaking the development above and any additional development deemed necessary, the Veteran’s claims should be readjudicated. If the benefits sought on appeal remain denied, the appellant and her representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Patricia Veresink